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Beijing Law Review, 2014, 5, 34-48

Published Online March 2014 in SciRes. http://www.scirp.org/journal/blr


http://dx.doi.org/10.4236/blr.2014.51004

The Right of Getting Bail of an Arrested


Person in BangladeshA Legal Study
of Theories and Practice
Shahidul Islam, Golam Moula
Department of Law, Northern University Bangladesh, Dhaka, Bangladesh
Email: shahidnublaw@yahoo.com, suhag_law@yahoo.com
Received 26 November 2013; revised 25 December 2013; accepted 21 January 2014
Copyright 2014 by authors and Scientific Research Publishing Inc.
This work is licensed under the Creative Commons Attribution International License (CC BY).
http://creativecommons.org/licenses/by/4.0/

Abstract
The essential sense of the Bail in Bangladesh is to release a person from the custody of police and
deliver him/her into the hands of the sureties who undertake to produce him in court whenever
required to do so. The word Bail is derived from the old French verb Bailer which means to give
or to deliver1 (Websters Dictionary, 1938). In common Law legal system, it is found that an accused person is to be declared on bail, when he is released from the custody of the officers of the
Court. The sureties are bound to produce him to answer at a specified date, time and place, the
accusation against him when bail is approved by the competent court. The basic principle regarding release on bail is that an accused person is presumed in law to be entitled to freedom and
every opportunity to look after his case, provided his attendance is secured by proper security.
However, the paper focuses the idea of releasing an accused on bail in such a case that has been
developed as of right of an accused in our country. Therefore, this paper gives emphasis on bail of
an accused on legal analysis on theoretical and practical approach and it recommends that the bail
granting authority should maintain the principles of law as well as provisions of law properly for
the protection rights of an accused.

Keywords
Bail; Bailable Offence; Non-Balable Offence; Right of Accused; Release; Bond; Surety; Arrest;
Anticipatory Bail; Criminal Justice

1. Introduction
Bail has been recognized as a process of releasing of an accused from the custody of police under certain condi1

Websters New International Dictionary (1938), p. 171.

How to cite this paper: Islam, S., & Moula, G. (2014). The Right of Getting Bail of an Arrested Person in BangladeshA Legal Study of Theories and Practice. Beijing Law Review, 5, 34-48. http://dx.doi.org/10.4236/blr.2014.51004

S. Islam, G. Moula

tions temporarily. Generally, bail is some form of property deposited to a court to persuade it to release a suspect
criminal from jail, on the understanding that the suspect criminal will return for trial or forfeit the bail (and possibly be brought up on charges of the crime of failure to appear). In some cases bail money may be returned at
the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not
guilty of the crime accused. If a bondsman is used and a surety bond has been obtained, the fee for that bond is
the fee for the insurance policy purchased and is not refundable. In some countries, granting bail is a common
practice in the court. Even in such countries, however, bail may not be offered by some courts under some circumstances; for instance, if the accused is considered likely not to appear for trial regardless of bail. Legislatures
may also set out certain crimes to be not bailable, such as capital crimes.
In this sub-continent especially in Bangladesh, bail has been developed as of fundamental rights of an accused.
Bail has been defined by Blacks Law Dictionary in the language that security required by a Court for the
release of a prisoner who must appear at a future time. The same dictionary further says that, as verb Bail
means to obtain the release of oneself or another by providing security for future appearance2 (Garner, Blacks
Law Dictionary, 1927). Bail is a safety measures which is given for the due appearance of a person who is arrested or imprisoned to get his or her temporary release from the legal custody (Akkas, 2009).3
According to Concise Oxford Dictionary bail means a security for the appearance of prisoner on giving which
the accused pending trial. In the same dictionary the meaning of bail as a verb is giving as to admit to bail, to
release on security given in appearance.
In the Random House Dictionary bail means
1) Property given, as surety that a person released from custody will return at an appointed time;
2) The person giving it; and
3) The privilege of being released on bail.4
Thus the term bail includes in itself concepts
Firstly, the person who stands surety for appearance of the man in court whose released is the purpose of the
bail;
Secondly, the amount of money offered as security for appearance of that man; and
Thirdly, the position or privilege of being released on bail.
Bail is therefore presupposes a moderation, that is, deprivation of liberty of the person to be released and
when he is released from such restraint or custody he is said to be released of on bail.

1.1. Categories of Bail


Provisions as regards bail can be broadly classed into two categories: 1) Bailable cases and 2) Non-bailable cases.
1) Bailable Cases:
The grant of bail is a matter of course. It may be given either by the police-officer in charge of a police-station
having the accused in his custody or by the court. The release may be ordered on the accused executing a bond
and even without sureties.5
2) Non-Bailable Cases:
In non-bailable cases, the accused may be released on bail, but no bail can be granted where the accused may
be released grounds to be guilty of an offence punishable either with death or with imprisonment for life. But
doesnt apply to
a) a person under sixteen years of age;
b) a woman; or
c) a sick or infirm person.
As soon as reasonable grounds for the guilty cease to appear, the accused is entitled to be released on bail or
on his own recognizance; he can be also released, for similar reasons, between the close of the case and the delivery of the judgment.
2

Brayan A. Garner, Blacks Law Dictionary (2009), p. 150.


Dr. Sarkar Ali Akkas, Law of Criminal Procedure. (p. 243). Dhaka, Bangladesh, Ankur Prokashani. Cited in A C Sen(1979) (Mitras legal
& Commercial Dictionary) Eastern Law House, Kolkata. p. 98.
4
Random House Dictionary (College Edition), p. 134.
5
Section 436(1), the Code of Criminal Procedure, 1898.
3

35

S. Islam, G. Moula

1.2. Categories of Offences

The Criminal Procedure Code has under section 4 (b) categorized offences as bailable and non-bailable.
1) Bailable offence
The Criminal Procedure Code provides that in the case of bailable offences the person accused has an indefeasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered
necessary.6 The provisions of the section are mandatory, and the Court or the officer in Charge of the police station, as the case may be, is bound to release the person in custody who is accused of a bailable offence, on bail,
provided he is prepared to give it, or on recognizance. The seriousness of the offence is immaterial for the purpose of bail, provided that the offence is bailable. Where the accused is charged with a non-bailable offence but
it is found that the offence, if any, made out on the facts was bailable, the accused must bailed out. The Court
has no discretion in the matter. Where the High Court ordered that bail may be granted by the Magistrate after
recording some evidence and the Magistrate found that the charge against the accused could be only for bailable
offence, he was right in admitting the accused to bail without recording any evidence.
2) Bail by Police-Officer
An officer-in-charge (OC) of a police station is bound to grant bail in bailable cases, and in improper refusal
to do so will amount to a violation of duty. A person arrested by the police under the Criminal Procedure Code,
1898 should be given the option of release on reasonable bail being provided.7 The bail should not be excessive,
and no needless impediment should be placed in the way of being admitted to bail. The intention of the law is
that in such a case the man is ordinarily to be set at liberty and it is that in such a case the man is ordinarily to be
set at liberty and it is only when he is unable to furnish such moderate security, if any, required of him, as is
suitable for the purpose of securing his appearance before the Court pending inquiry, that should remain in detention.
3) Non-Bailable Offence
Whenever a Court requires an accused person to furnish a bail bond, the terms of the bail should normally be
for attendance and other conditions should not be imposed. This would be more in case where the accused is
called upon to be of good behavior; since there is a separate and distinct provision of law for this purpose. It
would be improper to impose such condition in a bail bond and to ignore the provisions of the Code, which provide for such cases. But in the case of non-bailable offences, a court may, while granting bail to the accused,
impose conditions other than fixing of bail for the attendance of the accused. Such conditions will not be illegal.
An order imposing a condition that the accused should confine their movements to the municipal limits of the
town as long as the Sessions case was pending and report themselves twice a day to the police station was held
to be not illegal. Where a Magistrate while releasing the accused on bail stated that besides executing the bond
with sureties their release was subject to a condition that the accused would not enter upon the land in dispute
for a particular period and that they would not commit any breach of peace. Where a woman is accused of a
non-bailable offence and the situation was such that all her relations within prohibited degrees were arrayed
against her and the court ordered that she should furnish surety of one of such relatives. It was held that it could
not be morally justified to compel such women to choose as sureties those very men who were her sworn enemies and who were determined to put her on a road that leads to sin and crime? So the safest course for a Court
to adopt is to release the woman on a surety of her own choice and leave the law to take its own choice and
leave the law to take its own course so that if there is repetition of the offence, nothing prevents either the Court
from canceling the bail or the complainant from initiating a second case. But that doesnt mean that the Court
cant at all impose any condition while granting bail. The matter has to be considered on the facts of the case.
The law doesnt contemplate the incorporation of powers while granting bail to make sure that they do not repeat the offences allegedly committed by the accused persons.

2. Law Regarding Disposal of Bail Application


The law regarding to disposal of bail application is as under
1) When an accused surrenders in the Court and applies for bail, the subordinate Court have jurisdiction to
release him on personal bond.
2) The Courts should be liberal in this matter, but the facts and the circumstances of each case should be con6
7

Section 496, ibid.


Section 55, ibid.

36

S. Islam, G. Moula

sidered and taken into account.


3) In case of person in jail could apply for bail after taking signature of the Jail authority on vocalatnama.
4) In cases of women and children Courts should prefer top release them on personal bonds pending the disposal of their bail applications as there is always a fear of sex abuse and the child abuse in jail as well as police
custody and no one likes to report such outrages to the authorities out of shame or other reasons.
5) The bail applications should be decided as expeditiously as possible and should not be allowed to remain
pending for long. If practicable the bail application should be considered the sum up.

2.1. Condition for Granting of Bail


On the language of the Code Sessions Judges and Magistrates have no power whatever to impose any condition
at all when they grant bail.8 It was held in the case of Lakhi Narayan vs. Crown (1952) that neither the Sessions
Judge nor the Magistrate is competent to accept any conditions, which an accused person may like to suggest
him.9 Under the Code of Criminal Procedure the Court can grant bail on condition that the person shall attend at
the time and place mentioned in the Bail-bond before the police station twice daily, in the morning and in the
evening, to give report before the police-officer.10 A person arrested in a bailable offence, no needless impediments should be placed in the way of his or her getting bail (Akkas, 2009).11
While granting the bail the High Court should not impose such condition, which would amount to denial of
bail. In the case of Keshab Narayan vs. The State (1985) the court held that where, therefore, bail was granted
by the High Court to the accused on furnishing security of Rs 1 lakh in cash or in fixed deposit in nationalized
bank with due sureties residing in the State for like amount, the Condition amounted to denial of bail and is liable to be set aside.12 The conditions should not be harsh, oppressive and virtually resulting denial of bail. This is
because, it was held in the case of Anwar Hossain vs. The State of Orissa (1995) that an accused prosecuted for
offence relating to illicit distilled liquor. He was directed to be released on bail by depositing security-distilled
liquor. He was directed to be released on bail by depositing security with one surety in addition to bail bond.13 It
was decided in the case of Afsar Khan vs. The State (1992) on the other hand, that the present approach of the
Sessions Judge in insisting upon the petitioner to deposit a cash security of Rs. 750/ in each case, to totaling Rs.
6750/= is not only harsh and oppressive but indirectly denial thus depriving the persons individual liberty.14
However, the following conditions may be practiced to the grant of bail, such as living at a particular address
or having someone act as surety, if the court considers that this is necessary:
1) To protect and prevent the defendant/accused absconding;
2) To protect and prevent the defendant committing further offences while on bail;
3) To protect and prevent the defendant interfering with witnesses;
4) For the defendants own protection (or if he is a child or young person, for his own welfare or in his own
interests).
Failing to comply with bail conditions is not an offence, but may lead to the defendant being arrested and
brought back to court, where they will be remanded into custody unless the court is satisfied that they will
comply with their conditions in future.

2.2. Reasonable Grounds for Granting Bail


It was not acceptable to permit that bail to an accused person where reasonable grounds to believe that he was
committed an offence were shown to exist. Conversely where the Court was satisfied that no reasonable ground
existed to connect the accused with the liability it was free to enlarge him on bail. In the case of Sheikh Shahidul
Islam vs. State (1993) the court held that the actual test for grant or refusal of bail rested on availability of reasonable grounds.15
8

Section 499, ibid.


4 DLR (1952) 352.
10
Section 499 of the Code of Criminal Procedure, 1898.
11
Dr. Sarkar Ali Akkas, Law of Criminal Procedure. (p. 245). Dhaka, Bangladesh, Ankur Prokashani.
12
AIR (1985) SC 166 = (1985) Cr.LJ 1857.
13
Cr. LJ (1995) 863 (Ori).
14
Cr. LJ (1976) at 1681 (Kant).
15
1992 P. Cr. LJ 2597, BLD (1993) (AD) 190.
9

37

S. Islam, G. Moula

Granting bail on reasonable grounds is an expression which that the grounds be such as would appear sufficient to a reasonable man for connecting the accused with the crime with which he is alleged. If such grounds
exist tending to connect the accused with the crime, bail should be refused, without the need to go into a deeper
appreciation of the merits of those grounds and the evidence on which they rested, which functions was to be
assumed at the trial stage.16 It is not the prima facie case against the accused but the reasonable grounds for believing that he has been guilty which prohibits granting bail. It is found that the responsibility is on the prosecution to disclose those reasonable grounds.17
Court exercising the jurisdiction for granting bail should refrain from indulging in detailed in their orders in
rationalization of grant or non-grant of bail. However, the court observed in the case of Kashi Nath Roy vs. The
State of Bihar (1996) that giving reasons disclosing his mind while granting bail could not be considered a glaring mistake or impropriety to pass condemning remark and initiate action against concerned officer.18 Courts do
not have to prove the merit of the case. They have only to look at the material placed before them by the prosecution to see whether some substantial evidence is available against the accused, which if left unrebutted, may
lead to the inference of guilt. Reasonable grounds are not be confused with mere allegations or suspicions, nor
with rested and proved evidence, which the law requires for a persons conviction for an offence.19 As for example, where it is a case of accidental and unintended death caused by simple hurt, the limitation of the courts
discretion is removed which must then freely exercise in favour of granting bail.
Similarly where reasonable grounds are not disclosed but grounds do exist for a further investigation and inquiry into the guilt of an accused person, the case will fall under section 497 (2), in which case again bail should
be withheld.20 Under the Cr. P.C. the words, if there appear reasonable grounds for believing that he has been
guilty of an offence punishable with death or in the alternative with imprisonment for life, but include offences
merely punishable with imprisonment for life.21 The expression should be read disjunctively.22
In order to ascertain the reasonable grounds for believing that accused has been guilty of specified offences
it would be seen if a prima facie case is disclosed against the accused on the basis of FIR, statements of prosecution witness recorded according to CrPC.23 And the court also held in the case of Muhammad Sadiq vs. Muhammad Arshad (1997) that other incriminating material including the medical evidence collected by the prosecution would be also considered.24
The established position in law appears to be that in cases of murder bail cannot be granted unless the court
comes to the conclusion that there are no reasonable grounds for believing the accused to be guilty of that offence. It was held in the case of Younus Ali vs. Yousuf (1974) that what are reasonable grounds would be higher
than suspicion but certainly lesser than proof. If the offence is proved, the accused would incur conviction but
during the pendency of the trial Court has got to see in whether there reasonable grounds to connect an accused
person with a crime and believe in his complicity on the basis of evidence available on the record or proposed to
be offered by the prosecution.25
The Court cannot hold a preliminary trial at the bail stage.26 Where a bail prayer was moved before the High
Court by an accused who was sent for trial under section 302/34, Penal Code, and it was contended that on the
facts of the case he was not constructively liable for the offence of murder Therefore, it was held in the case of
Maheram Ali vs. The State, the High Court Division held that the decision of refusing bail was correct and HCD
also pointed out that to determine the circumstances for granting bail at this stage was very difficult. Where the
allegation against the accused is that he is simply order giver, he is entitled to be released on bail.27 It was observed in the case of Abdul Kader Faruque alias Mohd. Farukue vs. The State (1997) that seriousness of the of16

20 DLR (SC) 295.


44 DLR (AD) 192.
18
1996 Cr. LJ (SC).
19
1982 SCMR 668.
20
20 DLR (SC) 295.
21
Section 497 of the Code of Criminal Procedure, 1898.
22
21 DLR (SC) 199.
23
Section 161 of the Code of Criminal Procedure, 1898.
24
1997 P. Cr. LJ 866.
25
1974 P. Cr. LJ Note 85 at P. 53; Khalid Saigol vs. The State PLD 1962 SD 495; Nadir vs. The State PLD 1968 SC 10; Abdul Malik vs. The
State PLD 1968 SC 349 and Manzoor vs. The Sate PLD 1972 SC 11.
26
1973 P. Cr. LJ 913; PLD 1962 SC 495.
27
2 BLC 401.
17

38

S. Islam, G. Moula

fence by itself is no ground to refuse bail to an accused when the prosecution fails to place any material on
record to connect him with the alleged offence.28 When prima facie case against petitioners made out under section 302/149/148 of the Penal Code on the basis of preliminary evidence recorded in a complaint case, bail cannot be granted.29 Where specific part is assigned to accused in first information report in the commission of two
murders and murderous assault own three persons High Court was justified in rejecting bail of the accused.30
In the case of Nurul Huda v State,31 the court held that the grant of bail is the discretion of the court and the
court could consider the exercise of discretion if it is satisfied in the facts and circumstances of the case that the
trial cannot be concluded within the specified time (Haque, 2007).

2.3. Circumstances Where Bail Not Be Granted


In the following circumstances bail should not be granted:
1) The court held in the case of Mang Karai vs. The State (1967) that when there is a chance of tampering, but
the mere allegation is not enough. There must be material to prove that the witnesses may be tampered with.32
2) When there is likelihood of the accused absconding. In proof of absconding the past conduct of the accused
has to be seen.
In the case of State vs. Surider Singh (1966) the court held that when bail application is opposed on ground of
witness being intimated and their being tampered with; State has to give evidence, which may be tested by
cross-examination. At least the affidavit of witnesses said to be intimated should be filed.33
3) It was held in the case of Venakataramanappa vs. K. R. Subramany Setty (1991) When there is prima facie
case of accused in grave offences and apprehension of tampering with evidence if released on bail; bail cant be
granted even is accused suffering from heart trouble or is the only earning member in the family.34
In the case of Mohammad Kasim Abdul Latif Memon vs. The State of Gujrat (1992) the court held that where
there was prima facie case that petitioner if released would tamper with the evidence; they cannot be released on
bail.35
4) When the overt act on the part of the accused alleged in the F.I.R is corroborated by post-mortem report,
the rejection of the bail application is justified.
In the case of Muhammad Ali vs. The State (1976) the court held that accused along with his companions
came with deadly weapons and forcibly abducted his wife and when intervened by deceased, him mother-in-law,
stabbed her to death, the accused was named in F.I.R and all prosecution witness, excepting one fully implicated
him in the crime.36 Subsequently, Bail was declined.
In the case of Meah Mahmud Ali Qasuri vs. State,37 the court observed that in bailable offences, the person
accused has the indefeasible right to grant of bail subject to satisfactory sureties being offered if necessary. The
condition is that the accused admitted to bail shall be deist from repetition of offence and imposition of such
condition & its incorporation in the bail bond cannot be considered to be ancillary to power to grant bail under
section 497 of the Code (Huq, 2010).
Provisions in the Code of Criminal Procedure: The power to grant bail under section 498 of CrPC is not
additional or independent of section 497 of CrPC. and the provision contained in section 497 CrPC have to keep
in view, while passing an order under section 498. The policy of the law, in respect of person accused of
non-bailable offences is laid in section 497 of CrPC and the same policy is applicable in respect of granting bail
under section 498 of the same Code. After all judicial discretion has to be exercised while grant bail and the
power conferred by the section 498 of the Code cannot be construed to be purely arbitrary. In this respect,
therefore, section 498 of the Code seems to be ancillary or subsidiary to sections 496 and 497 of the Code. In
other respect, however section 498 occupies position of a supplementary provision in so far as it confers not only
28

1997 BLD 148.


1994 P. Cr. LJ 437; Shah Alam Chowdhury vs. The State 42 DLR (1990) (AD) 10.
30
1985 SCMR 2082(1).
31
55 DLR (AD) 33.
32
AIR 1967 Tri 32 = 1967. State vs. Mahbub Ali, AIR 1957 Bom, 548.
33
1966 Cr. LJ 863.
34
1991 (2) Crimes 648 (Kar).
35
1992 (1) Crimes 1109.
36
1976 P. Cr. LJ. 683.
37
15 DLR (SC) 429.
29

39

S. Islam, G. Moula

concurrent but revisional powers on the High Court and the Sessions Court in respect of grant or refusal of bail
by subordinate courts the police enables these Courts to exercise the power to grant anticipatory bail in suitable
cases. Therefore, the power of High Court to grant bail under section 498 of CrPC is subservient and ancillary to
section 497 of CrPC, while limits the power to grant bail in a case punishable with death or transportation for
life to old age, physical infirmity or sex.

3. Refusal of Bail
Bail was refused, where three of the injuries where declared to be grievous, having been caused by sharp-edged
weapon in the abdomen. In the absence of anything else, local and nature of three injuries prima facie indicated
their being grievous and dangerous to life within section 320, to Penal Code and punishable with imprisonment
extending up to 10 years. Bail was not granted. Section 409, Penal Code falls within the mischief of the prohibition contained in sub-section (1) of section 497 CrPC Therefore, power to grant bail limited to the conditions
laid down in the exception clause and proviso thereto. It is however, to be noted that where the offences with
which the appellant is charged do not fall within the exception clause and proviso thereto. It is however noted
that where the offences with which the appellant is charged do not fall within the exception clause, his prayer for
bail could be refused only for good and sufficient reasons and not on whimsical grounds. The Judges of the High
Court having found that there was no material in support of the findings by the Sessions Judge that if the appellant be released on bail he will tamper with evidence, the only proper order to pass in the case was to accept the
application for bail, but they proceed to speculate that the changes of tampering could not be ruled out as the
witness in the case had worked under the appellant. In this they failed to exercise the discretion vested in the
High Court according to the rule of reason and justice. The court of Magistrate who grants bail of the accused
person, only that court of Magistrate can cancel the bail of an accused. The other court of Magistrate cannot
cancel the bail38 (Hossain & Rahman, 2011).

4. Powers of High Court Division


The power of the High Court Division to grant bail is entirely unfettered by any conditions, and the limitations
and considerations guiding the Court in granting bail under section 497 or section 496 do not apply to it.
The Jurisdiction of the High Court to grant bail under section 498 of CrPC is not merely revisional but concurrent with that of the subordinate Magistrate trying the case. But section 498 of CrPC has to be construed to
extend the powers of the High Court or the Sessions Court to grant bail in cases where those Courts would not to
be competent to grant bail under section 497.
The power to grant bail under section 498 of CrPC is not additional or independent of section 497 of CrPC
and the provision contained in section 497 have to keep in view, while passing an order under section 498. The
policy of the law, in respect of person accused of non-bailable offences is laid in section 497 of CrPC and the
same policy is applicable in respect of granting bail under section 498 of the same Code. After all judicial discretion has to be exercised while grant bail and the power conferred by the section 498 of the Code cannot be
construed to be purely arbitrary. In this respect, therefore, section 498 of the Code seems to be ancillary or subsidiary to sections 496 and 497 of the Code. In other respect, however section 498 occupies position of a supplementary provision in so far as it confers not only concurrent but revisional powers on the High Court and the
Sessions Court in respect of grant or refusal of bail by subordinate courts the police enables these Courts to exercise the power to grant anticipatory bail in suitable cases. Therefore, according the CrPC the power of High
Court Division for granting bail under section 498 of CrPC is subservient and secondary to section 497 of CrPC
this section limits the power to the High Court Division to grant bail in the case punishable offences with death
or imprisonment for life to old age, physical infirmity or sex.

4.1. Form and Contents


An application for bail or an affidavit supporting such application should state clearly the grounds on which bail
is asked for and the reasons for such grounds.
Application to High Court Division:
An application for bail to the High Court should not include defamatory allegations containing attacks on the
38

7 DLR 637 (DB).

40

S. Islam, G. Moula

trying Magistrate or the officers in the service of the Government, which are irrelevant and improper in them. It
is the duty of the defence counsel to satisfy him about the correctness of the allegations made by him in the application. It is inconsistent with the responsibility of a counsel to make averments of the fact in the application
and petitions, on information receive through undisclosed sources. It is not proper for the officer to receive applications in which averments of fact are made, when those averments are not supported by a solemn deposition
of someone who says that those averments are true.

4.2. Presence of Accused at Hearing


Where an application for bail admitted for hearing the Sessions Judge was obliged to dispose of their bail application on merits and could not reject the same summarily on account of their non-appearance. It was not necessary for a person to be present on the date of confirmation or otherwise of his bail; unless the Court insists for
that or otherwise it is so directed by the Court.
Present situation: There is no doubt that the Additional Session Judge had directed that petitioners to appear in
the Court on every date, but if they were absent on account of their illness on a particular date, then their appearance on a later date could be insisted upon by the Additional Sessions Judge, failing which their bail bonds
could be cancelled.

4.3. Abscondence of Accused


It was held in the case of Muhammad Shafiq vs. Muhammad Arshad (1997) that abscondence is to be taken into
account while considering the matter of bail of an accused involved in a non-bailable offence39. Accused who
had not surrendered to police after the occurrence would be deemed to have remained in abscondence.40 The
court also observed in the case of Md. Rashid vs. State (1197) that facts of absconsion of accused put Court on
further alert while considering question of bail.41 In a case of Khairujjaman vs. State (1999) the court decided
that gruesome murder where there is chance of absconsion of the accused and tampering with the evidence, bail
can well be refused.42
When it was clear that accused was absconder and fugitive from law and challan had been submitted and
proceedings and section 512 of CrPC were taken, he should be remanded to custody to face the trial.43 But
where there is nothing on the record to show that they had been declared proclaimed offenders. It cannot be said
that they had absconded merely because they were not readily available to the place.44
In the case of Jagabandhu Bhowmik vs. State (1960)45 it was held that where accused did not surrender
though his close associates were charged for the crime along with hi, and he knew the allegations against him.
Discretion exercised by High Court in canceling bail allowed to accused by Sessions Court did not call for interference by Supreme Court. Courts should not pressure on the appearing on the appearing accused to produce
and absconding accused.

5. Main Conditions for Anticipatory Bail


The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under CrPC are46
1) that there should be a genuine apprehension of imminent arrest with the effect of virtual restraint on the petitioner;
2) that the petitioner should physically surrender to the Court;
3) that on account of ulterior motives particularly on the part of the police, there should be apprehension of
harassment and under irreparable humiliation by means of unjustified arrest;
4) that it should be otherwise a fit case on merits for exercise of discretion in favor of the petitioner for the
purpose of bail. In this behalf the provisions contained in section 497 of CrPC would have to be kept in mind.
39

1997 P. Cr. LJ 867.


1989 P. Cr. LJ 2026.
41
1997 P. Cr. LJ 1499.
42
1999 MLR 75.
43
PLD 1987 Kar. 384.1
44
1989 SCMR 1987; PLD 1987 Kar. 275.
45
12 DLR (1960) 458.
46
Section 498 of the Code of Criminal Procedure, 1898.
40

41

S. Islam, G. Moula

5) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for
the same relief under section 498 of CrPC.47
Ordinarily an application for bail before arrest should be presented to the Sessions Judge48. The anticipatory
bail may be granted when the offence are bailable or non-bailable and non-cognizable.49
The petitioner did not approach the High Court with-clean hands and applied for bail when their petitions
were pending before the lower Court, and made false statements to justify that course50, or where the accused
made a misstatement before the Sessions Court in proceedings for bail, bail was not granted.51 Ordinarily the
High Court does not directly entertain bail applications unless in the first place remedy before the Court of Session is exhausted.52 The Sessions Judge and the High Court have concurrent jurisdiction in the matters of bail
and the ordinary principle, where concurrent jurisdiction are involved, is that the Court of inferior jurisdiction
should be moved first.

5.1. Conditions Enumerated to Grant Anticipatory Bail


The considerations which weigh with the Court while granting bail under section 497 or section 498 of CrPC
are
1) the nature and gravity of the circumstances in which the offence is committed;
2) the position and the status of the accused with reference to the victim and the witnesses;
3) the likelihood of the accused fleeing from justice;
4) of repeating the offence;
5) of jeopardizing his own life being faced with a grim prospect of possible conviction in the case;
6) of tampering with witness;
7) the history of the case as well as of his investigation; and
8) The court held in the case of Sajjan Jumar vs. State (1991) that other relevant grounds which may apply to
the facts and circumstances of a particular case.53

5.2. Duration of Anticipatory Bail


In Gurbaksh Singh vs. State, the Court made it clear that the operation of an order passed under section 438 (1)
of CrPC needs not necessarily be limited in point of time. The Court may, if there are reasons for governed by
Terrorist Areas (Special Courts) Act, 1984.54
In the case of H. S. Manjunath vs. The State (1995), the court held that anticipatory bail under section 438
CrPC can be granted to a person accused of offences under the Forest Act, 1963 and apprehending arrest by the
Range Forest Officer.55

6. Bail on Special Laws: Preventive Detention


6.1. Special Law Providing for Bail
Where a special law makes provision for disposal of bail applications, the High Court has no jurisdiction to
grant bail in contravention of those provisions. There is no question of disputing with a special enactment or
permitting it to govern the field for which it is meant, or it caters; but it cannot be stretched too far to enable it to
travel outside its scheme and to disturb the continuance of the normal law of the land; much less to allows it to
occupy the field for which it does not provide. Therefore, the accepted principle is that special enactments
transgressing into the field in occupation of the laws universally applied and accepted in a country deserve strict
interpretation so that they are confined to that field alone in which departure was intended by the legislature due
to any expediency.
47

PLD 1973 Lah.256.


PLJ 1973 Lah. 524.
49
NLR 1983 Cr. LJ. 43 (1).
50
NLR 1983 Cr. L. J. 19 = 1982 P. Cr. L.J. 587.
51
PLJ 1981 Cr. C. 456.
52
PLD 1970 Kar. 57 = 22 DLR (WP) 216 = 1970 P. Cr. LJ. 188 = 1973 P.Cr.LJ. 163.
53
1991 Cr. LJ. 645 at 653 (Delhi).
54
Promode Khare 1982 Cr. LR 344 (MP).
55
1995 Cr. LJ 179 (Kant) DB.
48

42

6.2. Special Court or Tribunal Not Constituted

S. Islam, G. Moula

Where an offence is triable by a Special Court, and the Special Court has not been constituted when a pre-arrest
bail application is made to the High Court, the Court can exercise jurisdiction under this section even when the
Special Court is constituted after the application is made.

6.3. Prevention of Corruption Act


Where the petitioner was charged for offences under section 161 of CrPC, and section 5 of the Prevention of
Corruption Act, punishable with 3 years and 7 years Rigorous Imprisonment respectively. Prohibitory clause as
given in section 497 of CrPC was not attracted to the petitioners case. He was enlarged on bail on such sole
consideration. Where in a case under the Act the accused petitioner was no longer required by the police for investigation, he was released on bail.

6.4. Customs Act


Where an offence has been committed under Customs Act bail may be granted under the Criminal Procedure
Code. Where the petitioner a carrier for the owner, was charged under Custom Act for smuggling narcotics, he
was not granted bail even when the offences was punishable with ten years R.I. only. But where the accused
was only a carrier and he had no reason to doubt that goods sought to export out of Bangladesh were contraband
or the company for which they acted was a fictitious firm. On the contrary the accused on getting suspicious
made inquires and finding the export documents forged got in touch with the Customs Authorities and informed
them what he had discovered at a time when goods had no idea that an attempt was being made to export narcotics out of Bangladesh. The possibility that the accused might be victims instead of being privies could not
ruled out. Bail was granted.

6.5. Special Law Not Specially Providing for Bail


Where the special or the local law does not specially provide for bail, provisions of CrPC code would apply and
ordinary Courts may grant bail. As there is nothing in foreign Exchange Regulation Act to regulate matters of
bail, the powers of the High Court under section 498, to admit a person accused of an offence under the Act to
bail has not been restricted or taken away and the High Court has jurisdiction to admit persons accused under the
Act, to bail.

6.6. Appeal Filed under Special Law


Where an accused is convicted under a special law and he files an appeal to a tribunal se up under that the law
but there is no provision under which the tribunal may enlarge him on bail pending the disposal of the appeal, it
will be presumed that such appellate tribunal has the power to pass interim orders, including an order to release
the convicted person on bail pending the decision of the appeal.

6.7. Provision of Bail to Preventive Detention


General Provision
Where the proceeding are in the nature of preventive action the underlying object of which is to ensure that
the detunes will not commit any offences or offences and not to punish them, for having committed any offence,
they not being accused persons charged with the commission of any offence cannot lay claim to the application
of provisions of section 496, 497 or 498 of Cr. P. C. and apply for bail under any of these sections. Provisions of
these sections are not applicable to persons detained under preventive laws who are sent up before Special Tribunals especially not for trial for specified offences but in order to adjudicate whether orders of a certain kind,
particularly preventive could or should properly be passed against them.

6.8. Arrest by Police


Section 151 of CrPC deal with an emergent situation and authorizes a police officer to prevent an apprehended
offence by arrest of a person designing to commit the same, without a warrant or without waiting for the order of

43

S. Islam, G. Moula

a Magistrate. The application of section 107 along with section 151 of CrPC would clearly indicate that the offence designed to be committed related to the breach of public peace. Obviously, therefore, the procedure laid
down in Chapter VIII of CrPC must be followed to deal with the situation, which by implication denies the
power of immediate release to the police officer even on offering sureties. In the circumstances, therefore, the
omission in the second proviso of CrPC, which does not deal with any particular offence, is wholly immaterial.56

6.9. Arrest of Vagabonds, Habitual Offenders Etc.


The police may arrest without warrant as a preventive measure, any person covered by section 55 of CrPC. This
section is intended for suppression of habitual bad characters whom an officer-in-charge of a police station suddenly finds within his circle, or about whom he has good cause to fear that they will commit serious harm before
there is time to apply to the nearest Magistrate empowered to deal with the case under section 122 of CrPC
When the police act under this section they are bound to give the person arrested the option of bail, and that bail
should not be excessive but in accordance with the position in life occupied by the person arrested.

6.10. Bail under Terrorist and Disruptive Activities


The Terrorist and Disruptive Activities (Prevention) Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section 482.

6.11. Bail under Narcotic Drugs and Psychotropic Substances Act, 1985
The powers of the High Court to grant bail under section 439 of CrPC are subject to the limitations contained in
section 37 of the Narcotic Drugs and Psychotropic Substances Act and the restrictions placed on the powers of
the Court under the said section are applicable to the High Court also in the matter of granting bail.

7. Malpractices Relating to Bail


7.1. Not a Right for Persons Accused of Non-Bailable Offence
Bail cannot be claimed as right by persons accused of non-bailable offences that are more serious in nature.
Murder, attempt to murder, culpable homicide, kidnapping, abduction, rape, robbery, dacoity, receiving stolen
property are some examples of non-bailable offence. The CrPC suggest that a person accused of committing a
non-bailable offence may not be released on bail if there is reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment for life.57 (For example, murder and rape). Section
496, however, allows the court to grant bail to disadvantaged people like children, women and the sick and persons who appear to be innocent. It must be stressed here that granting bail even to the above persons is not
mandatory for the courts and as observed by the Supreme Court of India in R. G. Upadhyay v. S. Sing, discretion
in granting bail in such cases should be exercised in a judicious manner. As principle, the courts should decide
not to grant bail if there is a reasonable apprehension that: 1) the accused may abscond if he is released on bail
and/or 2) the accused if released on bail would tamper with the witnesses.

7.2. In Practice Also Granted to Notorious Criminals


Quite contrary to the legal provisions and principles, in the recent years bail has often been granted to the most
notorious offenders and rejected to the women and children. For example: between 1994 and 2001, 1047 cases
have been instituted against 97 persons whom the Dhaka metropolitan police, in 2002, had listed as the notorious terrorists involved in sensational cases in the Dhaka Metropolitan Areas. Among these 1047 cases, bail
related information could be obtained about 659 cases. Out of these 659 cases, the said terrorists in total obtained bail in 512 cases (76 from the High Court Division), which means in more than 77 percent cases, their
bail prayer succeeded. The above-mentioned list included some more renowned terrorists and gang leaders
whom the government has later declared as the top terrors and announced reward for information that may fa56
57

Section 151 of the Code of Criminal Procedure, 1898.


Section 496, ibid.

44

S. Islam, G. Moula

cilitate their arrest. For example, Subrata Bain obtained bails in eight cases involving non-bailable offences; Haris Ahmed obtained 10, Hannan 6 and Tokai Sagar 7 bails in similar cases. Until the 17 August bombing of last
year all over the country, bail had very generously been offered to the religious extremists as well. Bail to notorious terrorists often led to unavailability of witnesses, or absconding of the accused. For example, in 442 cases
against the aforesaid 97 notorious terrorists, the reason for delay in the disposal of cases is unavailability of witnesses. Out of these 442 cases, the accused got bail in 296 cases and remained absconding in 72 cases. There are
examples where the absconders were later sentenced to life imprisonment or capital punishment, but could not
be arrested again. Bail even led to the death of attempted victim or witness quite in a few cases. Although law
expects bail to be granted to the women and children, often it is they or the poorest section of the society who
are denied bail.
In BLAST vs. Bangladesh58 (Petition number 7578 of 2003), it was reveled that out of 7402 under trial prisoners in the Dhaka Central Jail, 118 were women and 214 were children below the age of 18 years and others were
mostly of very poor background. These indicate that the legal and institutional lacuna in the bail regime could be
exploited only or mostly to the advantage of moneyed and influential offenders.

7.3. Role of Major Players


As statutory and case laws always warn against granting bail to persons who might abscond or tamper with witnesses, the great number of bails to those persons clearly indicate that their bail prayers were not examined very
judiciously or opposed properly. The major players, in this regard, include the following:
Police facilitates obtaining bail: Failure of police, in particular the investigation officers, in preparing the
FIR, case docket and investigation report properly and in conducting thorough investigation or in producing
witness to the court may dilute a case substantially or delay the hearing of a case for an indefinite period. In the
former case, under section 497(2) of CrPC, and in the latter case, utilizing its authority under section 339C of
the same Code, the Court normally releases an offender on bail. In addition, police may facilitate bail for a habitual criminal by omitting to mention previous cases against that offender in P.C.P.R. column in the charge
sheet or by discarding the non-bailable sections from the charge sheet.
Public prosecutors not performing properly: The public prosecutors or Court Sub Inspectors can contribute
to the granting of a bail in various ways. These includes 1) by not objecting to the bail prayer or 2) by not doing
it properly or 3) by absenting himself from the hearing or 4) by repeatedly claiming that he had not received
case docket or other necessary papers.
Less seriousness or leniency of judges: The judges enjoy wide discretion in deciding whether or not bail
should be given in non-bailable cases. There are allegations that they often do not or cannot do it properly may
be due to inexperience, heavy work load, insincerity, or because of political pressures on them or their involvement in corruption. The High Court and the Session judge very rarely exercise their revision jurisdiction to inquire or monitor the appropriateness of granting bails by the subordinate judges to notorious criminals.
Government influence: The government, in particular the Home Ministry through the police and Law Ministry through the Session Judges and Establishment Ministry through the Magistrates may influence granting of
bail to politically loyal criminals. Such allegations suggest need for establishing an independent, transparent and
accountable judiciary for stopping or minimizing political or monetary influence in the bail system.

8. Reform Needs
8.1. Determining Sureties
Lawyers who become sureties often do it for monetary benefit and in case of forfeiture of the bail bond, punishment like payment of penalty are not generally enforced and punishment of civil jail had never been executed against them. It is suggested these punishment should be strictly enforced at least in cases involving
murder and rape. Alternatively, tough and more effective measures must be introduced for enforcing appearance
of the accused released on bail. For example: it may be made mandatory for the accused to deposit documents of
his immovable property, if any, to the court as a guarantee for appearing to the court.
58

55 DLR (2003) pp. 363, 374.

45

S. Islam, G. Moula

8.2. Stringent Laws for Certain Offences

It is also proposed that before releasing apparently innocent accused under section 497(2) CrPC, the court itself or through a subordinate official, would undertake an inquiry to be satisfied that there are not reasonable
grounds for believing that the accused has committed that offence.

8.3. Witness Protection Laws


A Special Police Force should be set up who would have necessary training and facilities for ensuring protection
of witnesses. Once the protection could be ensured, obtaining bail by the habitual criminals would be much
more difficult and administration of criminal justice would be immensely strengthened.

8.4. Specialized Investigation Cell


Such cell with adequate legal training should be developed within the police personnel. The cell members would
do only investigation of criminal cases and they would not be transferred to any other department of Police, unless it is absolutely necessary for public purpose. They would be attached with a Police Station, but their works
would be regularly monitored by designated Magistrates or by the Solicitor wing of the Law Ministry or by any
other appropriate authority. The charge sheet or final report produced by them in relation to serious non-bailable
offence like murder and rape must be double-checked by the monitoring authority before its submission to the
court concerned. Pre-trial stage should be strengthened to limit number of suits.

8.5. Strengthening Public Prosecution


In order to ensure such service, salary and facilities to the prosecutors must be raised to an extent that could attract good and honest Lawyers to join the PP Office, adequate and high standard training must be instructed to
them and an efficient and fully computerized documentation and information centre must be established and
regular and rigorous monitoring over them by the solicitor wing must be put in place.

8.6. Monitoring the Judges


Monitoring over the Subordinate Judges must be strengthened, particularly in cases where bail is granted to a
person accused of serious offences punishable with death sentences. The revisional and monitoring authority of
the Superior Courts should be increased, if the existing one is not sufficient. Access to information to the reasons for granting or rejecting bails in non-bailable offences must be established for public scrutiny.

8.7. Other Measures


Though Judiciary is separated, but free from political pressure of Independent Judiciary and Judicial Magistrates
would also result into more efficient and less corrupt bail process. Transparency and in-house accountability
must be established. There are many other measures, which may contribute to strengthening of the present bail
regime. For example, strengthening legal aid, strengthening and streamlining of court support staff, promulgation of Right to Information Act, creation of Judiciary Ombudsman, reform in case management and court
management system.

9. Recommendations
In the perspective of our statutory law, here we follow adversarial judiciary system. Where the judges remain
silent and observe only the evidences provided by the lawyers and the Police Officer. So, here I made recommendations in the following way
1) Govt. should direct the police officer to do their duty properly and not on bias because, in our country,
Judges cant go beyond the evidence produced by the party and police officer. And, if the police officer does his
duty perfectly then justice will be ensured. And, Judge can undoubtedly decide when bail can be granted or
when not.
But before expectations of this type of duty from the police, Govt. has also a duty that is Govt. must increase
the salary scale of a police. This is because, money makes any person dishonest. So, if the police have no mone-

46

S. Islam, G. Moula

tary problem then, he has no bar to do his job properly.


2) In our practical experience, it is found that some Magistrates/Judges give his decision or exercise his discretionary power for granting bail to an accused on the basis of Medical Certificate. But, there are some particular topics e.g. grievous hurt, rapes etc that are totally different in Medical Science & Law. So, before exercising
the discretionary power Judges/Magistrates have to observe very carefully the Medical Certificate, and the
statement given by the Doctor, in order to do justice. So after scrutinizing various law points the Judges should
do the following things3) Judges should order to the law enforcing agencies i.e. Police, RAB, CID, Ansar, etc. to do their duties
properly;
4) In case of woman, aged person, sick or infirm person bail should be given;
5) In cases of overt act, that is where the accused does not take any leading or active part of the offence, bail
should be given;
6) On the basis of Medical Certificate a Judge should not refused the bail of an accused;
7) Co-accused should be released on bail, where their offences are in the same footing;
8) In cases of heinous offences i.e. Rape, Acid Throwing, offences under Narcotics Control Act (Exclusive
Possession), offences under Explosive Substance Act, bail should not be given;
9) In case of Murder bail should be given upon the nature of Murder.
10) In case of pre-plan murder bail should not be given.
In case of hostile enemy bail should not be given.

10. Conclusion
Bail is a fundamental issue in administration of criminal justice system. An accused is said to be admitted to bail
when he is released from the custody of police or court. In turn, the sureties accept the responsibilities to produce the accused to answer, at a specified time and place, the charge against him. Although bail ensures avoidance of unnecessary sufferings of presumably innocent person, it may conversely hamper administration of justice by enabling the accused person to abscond or to threaten the victims and witnesses. Granting or rejection of
bail may also result into economic and social difficulty for the families of victim and witnesses.
Therefore, it must be emphasize here that reforms in the bail related steps towards ensuring early identification and speedy trial of an exemplary punishment for instituting false and frivolous cases should accompany
criminal systems. A massive awareness programme against false cases should also be undertaken for reducing
and preventing institution of such cases. Otherwise use of bail process against the weaker sections of society
might flourish and that would jeopardise the objectives of aforesaid reforms to practice of bail.

Acknowledgements
Extremely grateful to Professor Dr. AFM Mohsin, Professor Dr. Sarkar Ali Akkas, Professor Dr. Md. Anisur
Rahman and Professor Dr. Ahsan Kabir for their cordial assistance in preparing the Article.

References
Anwar Hossain vs. The State of Orissa (Ori. 1995). Cr. LJ 863.
Afsar Khan vs. The State (Kant. 1992). Cr. LJ 1976 at 1681 P. Cr. LJ 2597.
Akkas, S. A. (2009). Law of Criminal Procedure (2nd ed., pp. 243-245). Dhaka: Ankur Prokashani.
Abdul Malik v. The State, (1968). PLD SC 349.
Abdul Kader Faruque alias Mohd. Farukue v. State, (1997). BLD148.
Bryan, A. G. (2009). Blacks Law Dictionary (9th ed.). Eagan, MN: West Group.
Haque, Md. Z. (2007). The Code of Criminal Procedure, 1898 (p. 229). Dhaka: Shams Publications.
H. S. Manjunath vs. State (1995). Cr. LJ 179 (Kant) DB.
Hossain, B., & Rahman, M. S. (2011). Law and Practice of Criminal Procedure (p. 737). Dhaka: Hira Publications.
Huq, Z. (2010). Law and Practice of Criminal Procedure (12th ed., p. 866). Dhaka: Law Book Company.
Khalid Saigol vs. State (1962). PLD SD 495.
Kashi Nath Roy vs. State of Bihar, (1996) Cr. LJ (SC).

47

S. Islam, G. Moula

Keshab Narayan vs. State (1985).AIR SC 166.


Khairujjaman vs. State (1999). MLR 75.

Lakhi Narayan vs. Crown (1952). 4 DLR 352.


Muhammad Sadiq vs. Muhammad Arshad, (1997). P. Cr. LJ 866.
Manzoor vs. Sate (1972). PLD SC 11.
Maheram Ali vs. State (1643). 2 BLC 401.
Mang Karai vs. State (1967). AIR Tri 32.
Md. Rashid vs. The State (1997). P. Cr. LJ 1499.
Muhammad Shafiq vs. Muhammad Arshad (1997). P. Cr. LJ 867.
Nadir vs. State (1968). PLD SC 10.
Random House Dictionary (College Edition), p. 134.
Shah Alam Chowdhury vs. State (1990). 42 DLR (AD) 10.
Sheikh Shahidul Islam vs. State, (1993). BLD (AD) 190.
Sajjan Jumar vs. State (1991) Cr. LJ. 645 at 653 (Delhi).
Promode Khare (1982). Cr. LR 344 (MP).
State vs. Mahbub Ali (1957). AIR Bom, 548.
Venakataramanappa vs. K.R.Subramany Setty (1991) (2) Crimes 648 (Kar).
Websters New International Dictionary (2nd ed., p. 171). (1938).
Younus Ali vs. Yousuf (1974). P. Cr. LJ Note 85 at p. 53.

48